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40 Years of Roe v. Wade

Landmark decision fueled decades of legal debate

By Bob Eschliman
Daily News Editor

Jan. 22, 2013

In January of 1973, the issue of abortion was one of the most-debated topics in both American politics and American society. The landmark U.S. Supreme Court ruling in the case of Roe v. Wade, issued 40 years ago today, has done little to change that.

But, the story of “Roe v. Wade” dates back several months earlier, to June of 1969, when Norma L. McCorvey, a Texas divorcee, discovered she was pregnant with her third child. Coming from a troubled childhood, she had given up her first two children for adoption.

In Texas at the time, abortions were illegal in almost all cases. But, believing rape to be an exclusion to the law, McCorvey claimed to have been raped in an effort to obtain a legal abortion.

When this effort failed — there was no police report to document the alleged rape — she sought an illegal abortion. The illegal clinic had recently been shut down by police, though.

Meanwhile, Dallas attorneys Linda Coffee and Sarah Weddington had been seeking an opportunity to challenge the Texas anti-abortion law. They took up McCorvey’s case in U.S. District Court using the alias “Jane Doe.” The defendant in the case was Dallas County District Attorney Henry Wade.

Before the case could be heard, however, McCorvey gave birth to a daughter, who was adopted like her older siblings in a private adoption. The case itself reached the Supreme Court on appeal in 1970, but the justices delayed hearing it and a companion case, Doe v. Bolton out of Georgia, until it had decided two other cases they felt would apply to the cases.

Oral arguments were to be heard Dec. 13, 1971, but before that could happen, justices Hugo Black and John Marshall Harlan retired from the court. Ultimately, it was decided to hear the case with only seven justices, as scheduled.

After the first round of arguments, the justices polled each other and found unanimous agreement to strike down the Texas anti-abortion law. Chief Justice Warren Burger assigned the writing of the Court’s opinion to Justice Harry Blackmun, who began drafting his preliminary opinion.

In the meantime, President Richard Nixon had appointed replacement justices, future Chief Justice William Rehnquist and Lewis F. Powell Jr., to refill the bench. Blackmun then successfully lobbied to have the case reargued Oct. 11, 1972.

After the second round of arguments, the justices were polled and decided 7-2 to strike down both the Texas and Georgia laws. Powell joined the original justices in agreeing to Blackmun’s conclusion, while Justice Byron White broke from his original decision and wrote dissenting opinion. Rehnquist sided with White’s dissent.

The Blackmun opinion found that a right to privacy under the due process clause of the 14th Amendment extended to a woman’s decision to have an abortion, but that right must be balanced against protecting prenatal life and protecting women’s health. It resolved the issue by tying states’ ability to regulate abortion to the trimester of pregnancy, which was rejected in later rulings that tied it to fetal viability.

While the Roe v. Wade and Doe v. Bolton rulings were specific to Texas and Georgia anti-abortion laws, they had the effect of nullifying anti-abortion laws in 44 other states. This, in turn, further stoked the flames of the national debate, activating grassroots movements on both sides.

Daily News Editor Bob Eschliman may be contacted at (641) 792-3121, ext. 423, or at beschliman@newtondailynews.com.

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